The Committee for Employment and Learning welcomes the opportunity to respond to the consultation document issued by the Department of Trade and Industry on the Employment Tribunal System.

The Committee sought the views of other committees of the Northern Ireland Assembly and would endorse the views of the Committee for Enterprise, Trade and Investment as to the general economic benefit ensuing from the earliest possible resolution of disputes (Appendix 1).

The Committee also welcomes this consultation document as a benchmark to inform the Department of Employment and Learning and the Executive's deliberations on how best to improve the efficiency and effectiveness of the Employment Tribunal System.

The Committee's views are as follows:

1. Resolving disputes at work

The Committee would be opposed to this proposal although on the surface there would appear to be some merits in making this mandatory and we would certainly agree that normally internal procedures should be fully exhausted. It would require all employers to adopt proper procedures that should at least be in line with the ACAS Code of Practice on Disciplinary and Grievance Procedures. This could have a significant impact, as small employers commonly do not have such procedures in place; yet they play a dominant role in Northern Ireland's (NI) employment sector. Moreover, small firms in NI make up a greater percentage of total businesses than their counterparts in the United Kingdom.

It could also help to alleviate Tribunals' existing and seemingly increasing caseload. Although the increasingly heavy caseload cannot be attributed to this alone but instead to several factors which include:-

1. the changing nature of the workplace;
2. better informed employees due to improved communications

and education;

3. the raising of the unfair dismissal compensation cap to

£50,000, potentially making litigation more attractive;

4. the reduction in the qualifying period from two years to one

year for unfair dismissal cases;

5. failure of employers to respect the legal rights of workers

and to provide fair procedures to sort out disputes;

6. the trade unions' realignment of their role; and
7. the enactment of additional jurisdictions over the years resulting

in an increasing range of employment rights e.g. disability legislation;

The Committee is opposed to this proposal as it appears to impose an absolute ban on tribunal applications prior to the exhaustion of internal procedures. Such procedures may be protracted and may result in disagreement about whether they have been fully completed. Moreover, they may be unsuitable in certain circumstances, e.g. the individual reasonably believes he or she will not receive a fair and impartial hearing due to the complete deterioration of relations between the individual and the employer.

The proposal appears to encourage fair employment practices on one hand, and then tries to deter people with genuine grievances from bringing a case; these two positions seem inconsistent.

The proposal potentially raises human rights issues that concern access to justice in relation to Article 6 of the European Convention of Human Rights (ECHR) provides individuals with a right to a fair, independent and impartial hearing. Moreover, Article 6 of the Human Rights Act 1998 requires courts and tribunals to "take into account" any relevant decisions from the Strasbourg Court of Human Rights (European Court on Human Rights), as well as governs their actions and requires them to apply ECHR provisions.

The Committee would be supportive of proposals to encourage the development of written procedures for dealing with grievance and disciplinary procedures as it acknowledges that clear written procedures are in the best interest of both employers and employees and are moreover 'good practice'.

The Committee for Employment and Learning would propose that perhaps one way of addressing this issue would be to include information to both parties at the outset of an application. The information should set out the potential consequences of ignoring such procedures and that should either party decide to invoke the procedures then any proceedings would be suspended and the application restored at a later date, if required.

The Committee would be generally supportive of this proposal, however, the department should ensure that the content of the forthcoming Labour Relations Agency (LRA) Code of Practice on Disciplinary and Grievance Procedures is fully taken into account and ensure that procedures are drawn up to ensure both good practice and adherence to statutory requirements.

Subject to the merits and mitigating circumstances of a case, the Committee is supportive of this proposal. It promotes the employer's provision of clear and meaningful information on employment terms and conditions, including internal grievance and disciplinary procedures, at the outset of employment. This would have a significant impact, as small employers commonly do not provide such information. There would need to be a concerted cross-departmental/agency approach to effectively address this. (See Proposal 4 reference 'small firms').

The Committee would be supportive of this proposal as it could ensure the accessibility of clear and meaningful information on internal procedures at the outset of employment. This could have a significant impact because as previously noted, small employers commonly do not have such procedures and they play a dominant role in Northern Ireland and make a much greater contribution to the economy, relative to that of small firms in the United Kingdom. Although there would be a short-term administrative cost to small businesses we hope that the implementation of this proposal, in the long run, would reduce the number of grievances.

Should this proposal be adopted it would of course be incumbent on the Labour Relations Agency to produce and promote a model statement of terms and conditions that can be applied or adapted by small employers.

The Committee do not support this proposal which goes against case law i.e. the 1987 House of Lords' decision in the case of Polkey v A E Dayton Services Limited. This proposal could encourage procedural mistakes, consequently contradicting the overall aim of the proposals. The aim being to encourage, if not require, employers to fully and properly follow internal procedures. Employers should not be free to apply inadequate, unreasonable or poor procedures without any consequences. This proposal would appear to go against the grain of the rest of the consultation document

The Committee strongly agree that further guidance or good practice material is needed to ensure that employers are aware of and can meet their obligations in written statements of employment terms. This would ensure the accessibility of clear and meaningful information on internal procedures at the outset of employment.

Although there appears to be distinct advantages in removing the LRA's duty to conciliate in cases such as disputes over pay, breach of contract and redundancy payments. Namely, it potentially allows complicated claims, e.g. pay, breach of contract and redundancy payments, to be addressed by the Tribunal which seems to be a more appropriate forum in light of the complexity. It also potentially helps to redress concerns that there is a long-term trend towards legalism in the Tribunals. It may also reintroduce cheapness, speed, informality and accessibility in handling claims, all of which were the original aims of the Tribunals.

This would seem to 'fly in the face of' the introduction of the Employment Rights (Disputes and Resolution) Act 1998 in Britain, when the government stated that allowing ACAS to conciliate on redundancy claims would reduce complaints to tribunals by 12 per cent. No indication is given as to the reason for a change of approach.

It would also appears not to address linked claims, i.e. where an applicant lodges tribunal action that concerns more than one claim, e.g. an unfair dismissal claim and a pay claim. In this situation, the applicant could use ACAS for the unfair dismissal claim, but could not use it in relation to the pay claim. Such an applicant is unlikely to use ACAS for the unfair dismissal claim because he or she probably would want all the claims simultaneously addressed, rather than undergo the inconvenience and anxiety of two separate proceedings.

Perhaps a better resolution to this would be to ensure that the LRA has sufficient resources to discharge all its conciliation functions effectively (subject to the conclusions of the ongoing Quinquennial Review of the remit of effectiveness of the Labour Relations Agency). A modest injection of additional resources is likely to enhance the prospects of conciliation and reduce recourse to industrial tribunals, effectively making an overall saving in public expenditure.

The Committee would support this proposal as it is in all parties' interests that cases amenable to conciliation settle at the earliest stage possible. This in turn will improve the work place environment and enhance productivity etc.

The Committee would support this proposal as it could increase the potential for settlements, resulting in fewer tribunal hearings.

The Committee would be in broad agreement with this proposal as it could significantly increase the capacity of conciliation services, possibly settling a greater number of claims before they go to Tribunal, and consequently helping to meaningfully redress Tribunals' heavy caseloads.

It could also help to reduce cost implications faced by employers and employees because they can avail of alternate conciliation services.

However, it potentially raises issues about regulation, e.g. how would such organisations be regulated to ensure full compliance with statutory requirements to ensure consistency, and thereby legal certainty. If such organisations are not properly regulated, it may result in miscarriages of justice.

Also, in the event they are regulated, sufficient monies will have to be provided: such monies may come from the public purse and or may be shared in some way by the employment sector.

This raises a number of questions for Northern Ireland:-

• Would this proposal be relevant in Northern Ireland?
• Are there sufficient knowledgeable organisations in Northern Ireland to merit consideration of this?
• What will be the role of the LRA in relation to their organisation?

3. Modernising Employment Tribunals

The Committee is opposed to this proposal. In any case, we note that the proposal is not included in the Employment Bill, which was introduced to the House of Commons on 7 November 2001. It is the Committee's view that it is potentially unfair to applicants. It appears to penalise those who have lost their jobs or suffered a possible infringement of their rights. Moreover, many people may not have the means to pay such charges or take the risk of losing these sums of money even if they consider their case to be justified.

It also potentially raises human rights issues that concern access to justice in relation to Article 6 of the European Convention of Human Rights (ECHR) provides individuals with a right to a fair, independent and impartial hearing. Moreover, Article 6 of the Human Rights Act 1998 requires courts and tribunals to "take into account" any relevant decisions from the Strasbourg Court of Human Rights (European Court on Human Rights), as well as governs their actions and requires them to apply ECHR provisions.

On balance the Committee would be supportive of this proposal. It is essential that this information be in the public domain to ensure freedom of information and also to allow future cases to use this experience.

The Committee would be supportive of this proposal. It enables the direct recovery of wasted costs as it may hold representatives who charge for their services more accountable for their actions. It could also discourage representatives from taking unnecessary action and thereby protect parties to a claim from incurring unnecessary costs. It would also contribute towards reducing unnecessary action that wastes the tribunal's time.

It should be noted that it does not appear to include "employment advisers/consultants" who often charge a contingency fee, i.e. a fixed percentage of any reward received after disbursements have been deducted.

The Committee would be supportive of this proposal. It encourages consistency of practice, which helps to ensure legal certainty for both applicants and employers as well as tribunals. It could also help to reduce representation costs given that there would be prescribed directions concerning procedural and interlocutory issues.

It is the Committee's understanding that in Northern Ireland the existing Rules of Procedure are being revised and potential improvements to operational processes are being examined.

The Committee is supportive of this proposal. However, to work effectively, in practice, such claims should be relatively straightforward and should, perhaps, focus on claims which have a modest financial value.

The Committee would be supportive of this proposal as it could positively influence actions of employees and employers in the workplace by discouraging certain behaviour.

Measures could be put in place to introduce earlier discovery and to encourage early meetings of both sides to discuss the issues concerned. This should be seen as good management practice.

In deliberating on the responses to this consultation and formulating a way forward for Northern Ireland, the Department should be mindful of:-

• Part 2 and Part 3 of the Employment Bill which was introduced to the House of Commons on 7 November 2001.

• Sir Anthony Leggatt's March 2001 report entitled 'Tribunals for Users One System, One Service: Report of the Review of Tribunals". The Review examined all tribunals including employment tribunals in England. The review recommends that employment tribunals should not be transferred into courts and that an enabling approach be adopted to proceedings. The review also recommended substantial improvements in information available to participants, funding for legal representation in specific cases tied to a merits test on an exceptional basis and grant aid to be provided to public bodies which give advice.

The review did not cover Wales, Scotland or Northern Ireland. However, the review recommends that extensive consultation should take place with devolved administrations to ensure that the report takes into account its proposals. The Northern Ireland Court Service is responsible for examining the review's implications for Northern Ireland. The review's recommendations are currently the subject of a consultation document issued by the Lord Chancellor's Department.

• The Single Equality Bill consultation exercise currently being conducted through the Office of the First Minister and Deputy First Minister. The Bill seeks views on whether changes should be made to the current position whereby industrial and fair employment tribunal decisions can only be appealed to the Court of Appeal on a point of law.

• The Equality Commission, in its position paper in response to the consultation, is recommending the setting up of an equal treatment appeals tribunal to allow appeals from industrial and fair employment tribunals to be heard on points of fact and law.

• Consideration should be given to the introduction of an Employment Appeal Tribunal (EAT) to ensure parity of provision with Britain. An EAT would allow case law to be set more readily and create greater certainty. It is also likely to reduce the number of cases proceeding to industrial tribunals in the first place.

• The document highlights the need for robust labour market information such as the Workplace Employment Relations Survey (WERS) illustrated by the knowledge of the use of grievance and disciplinary procedures in the workplace. Consideration is currently being given in the Republic of Ireland to developing an Irish WERS (IWERS). If an IWERS is put in place, Northern Ireland will be the only area not covered by such a survey.

• The Committee would recommend that an independent research project be undertaken to examine in detail the reasons for the current situation to inform the future legislative process. This should include a detailed analysis of the outcomes of all cases over a reasonable time period. In the absence of such research much of the debate has had to rely on anecdotes.

In conclusion, the Committee for Employment and Learning agrees with the statement of the Committee for Enterprise, Trade and Investment, "The Committee recognises the increases in the number of applications before Industrial Tribunals and the Fair Employment Tribunal and would encourage resolution of disputes before going to tribunals. Therefore, any reduction in use of tribunals to resolve disputes would be of value to the Northern Ireland economy in its widest sense" (Appendix 1).

Chairman

29 November 2001

Dr E Birnie
Chairperson
Committee for Employment and Learning
Room 284a
Parliament Buildings
BELFAST

Dear Esmond

14 November 2001

I refer to your letter of 5 October seeking comments on the above issue.

The Committee for Enterprise, Trade and Investment has considered these proposals and offers the following comments.

The Committee endorses the comments of Alan Johnson, Minister for Employment and the Regions. The Committee also supports the goal of a high skill, high productivity economy which can only be achieved through high performance workplaces, where employers and employees work together in partnership.

The Committee recognises the increases in the number of applications before Industrial Tribunals and the Fair Employment Tribunal & would encourage resolution of disputes before going to tribunals. Therefore, any reduction in use of tribunals to resolve disputes would be of value to the Northern Ireland economy in its widest sense.

The Committee has an interest in the outcome of your deliberations and would be grateful for a copy of your response to DEL.

Yours sincerely